January 28, 2005

If you want to learn quickly how to work up a case from start to finish, review the files in your firm's file room. Select a couple of large ones, then read through each piece of paper, paying special attention to the correspondence and pleadings folders.

When I started out at a large defense firms, I followed this tip myself, reviewing both old and active files. It was great way to learn how the lawyers at the firm worked up a case and what went on behind the scenes. I learned about the typical procedural steps from investigation to trial, and I learned how the lawyers at the firm interacted with other lawyers, as well as with witnesses and experts.

Something else that helped: during my file review, whenever I found a letter that I thought would work as a template for other, similar letters, I copied them and put them in a folder. It saved me time and made me feel more confident about my own work product, since now I had a baseline to compare it to.

January 27, 2005

The question "How do I maximize my impeachment" arises in a variety of circumstances—but always, and most critically—when it comes time to impeach a witness’ trial testimony with a prior inconsistent statement, such as a deposition or a writing authored by him. The standard trial advocacy books almost uniformly suggest a single formula for such impeachment. It is a formula which usually works, but to which QEUO&H recommends adding one element, and amplifying another.

The article goes on to discuss the problem of establishing that the prior inconsistent statement is more reliable than the trial testimony.

January 26, 2005

Judging from Brad Parker's post at Where's Travis McGee, as well as the comments to the post, it seems as if most agree: the appellate argument should be conducted by the lawyer who wrote the brief, not the one who tried the case.

If those happen to be one in the same, it means there's a lawyer who's way too busy.

January 25, 2005

The Rules Committee of the Illinois Supreme Court is considering some changes to the Illinois rules governing class actions. One of the proposals is the truly awful idea of mandating that discovery on the merits be postponed until the court has ruled on class certification.

Why would this be so awful, since discovery about class-certification issues would still be allowed? Answer: Because most discovery pertinent to class certification is also relevant to the merits of the case, and the proposed rule would engender motions galore, as the parties seek court intervention to define what is and isn't discovery "on the merits." (An unintended effect of the proposed rule is that the courts may end up ruling sooner on class certification--precisely the result that the tort-reform advocates don't want.)

January 24, 2005

When you were preparing your client for his deposition, you probably told him not to
volunteer anything that the opposing lawyer didn't ask about. Asking questions yourself would violate your own instructions to your client not to volunteer. This is one of the reasons why you rarely see lawyers asking their own clients questions at a deposition.

There are exceptions, of course. If your client's testimony on a key point was inaccurate, you can attempt to repair the damage with your own questions. If your client's testimony in a key area was damaging and needs to be explained, asking questions can allow your client an opportunity to give his explanation. Keep in mind, however, that if you ask questions for either of these reasons, it will send a signal to the opposing lawyer that you didn't prepare your client well enough and think you've been hurt by his testimony. Don' take this step without thinking about it first, especially since your questions probably won't repair the damage.

Another common reason to question your own client is because you need to elicit facts that will be used to defend an upcoming motion. Since testimony at a deposition will carry greater weight than an affidavit when attached to a legal memorandum--psychologically, if not as a matter of legal rule--it often makes sense to establish the facts at your client's deposition. In sexual harassment cases, for example, it is common for the plaintiff's lawyer to ask questions that will be used to help defend a motion for summary judgment.

January 21, 2005

How should you handle a witness who won't give you a direct answer to a question? There are various solutions to this problem, including the following:

If you foresee problems in advance of the deposition, notice up a video deposition; if the presence of the camera doesn't cure the witness of his impudence, you might at least be able to play clips of his impudence for the jury;

Even without the video camera, you can tell the witness about your plans to show portions of the deposition transcript to the jury;

You can tell the witness that unless he answers your questions, you will have to keep the deposition going for hours longer than is necessary;

If the witness is represented by a lawyer, you can have the witness's lawyer intercede to get the witness back on the right track;

You can stop the deposition and seek court intervention.

A very experienced lawyer I know has another suggestion. Sometimes, he says, you'll come across a witness who is very skillful in giving the appearance of cooperating in the process while not really cooperating at all; confronted with a witness like this, you should consider giving up and getting the evidence another way. In many cases, this will be the cheapest and most effective solution to the problem of the recalcitrant witness, and doesn't mean that the witness has "beaten" you.

January 20, 2005

CaseMap is a software tool to help litigators organize the facts and issues in a case. A few years ago, Trial Magazine published a helpful article about CaseMap titled "Store it with Software," by Howard S. Richman. If you're interested in case-management tools, Richman's article is worth a look.

Before Courts have addressed the scope of the attorney's duty to preserve client confidences in cases where the attorney's duty of confidentiality to a former client potentially conflicts with the duty of confidentiality to a present client. In such a case . . . [36 words]

After Sometimes a lawyer owes conflicting duties of confidentiality to former and present clients. In such a case, . . . . [13 words: a 64% saving]

January 18, 2005

In Kahn v. Enterprise Rent-A-Car Co., No. 1-03-3694 (1st Dist. December 30,
2004), the court ruled that the trial court in a personal injury case should have granted the defendants' motion to transfer venue from Cook County to DuPage County on the basis of forum non conveniens.

Some of the pertinent facts, according to the court:

[T]he accident took place in Villa Park, which is located in DuPage County; all of the nine potential witnesses to the accident were residents of DuPage County; plaintiffs and Muhammed were residents of DuPage County; the Villa Park police department personnel were at the scene of the accident following the collision.

The plaintiffs argued, in part, that some of the decedent's medical treatment took place in Cook County, and that "Enterprise maintains numerous business outlets and files lawsuits on a regular basis in Cook County."

Final result: the case was transferred to DuPage County. The court dismissed plaintiffs' argument about Enterprise's business in Cook County because "the Dawdy Court expressly rejected the contention that a corporate defendant doing business in the chosen forum affects the forum non conveniens issue."

Initially, the appellate court had denied defendant's leave to appeal, but changed its mind "[i]n accordance with a supervisory order from the Illinois Supreme Court to consider defendants' petition."